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infants and the mother should be reasonably provided for in the plan of their maintenance and education under their guardian.(h)

Jurisdiction of the Court of Chancery in controlling the Father's Right to the Custody of his Children.]—The origin and principle of the jurisdiction exercised by the court of chancery in controlling the legal rights of the father to the care and education of his children, is involved in some obscurity. Some have supposed that it belongs to the sovereign as parens patriæ, and then devolves upon the lord chancellor as the representative of the crown in this branch of the royal prerogative.(i) According to the theory of our constitution the sovereign is especially intrusted with the care and protection of all those who by reason of their imbecility, whether arising from infancy or want of sufficient understanding, are incapable of taking care of themselves.(k) The jurisdiction of the lord chancellor as representing the parens patria to control the authority of parents as well as guardians, (from whatever source it may have originated,) has been exercised for a long period, and is now firmly established by decisions.(?) The court of chancery has unquestionable jurisdiction to appoint guardians for infants who are *wards of the court to the exclusion of

[ *685 ] the father.(m) But the court has not exercised that jurisdiction, unless where there was property belonging to the infant to be taken care of by that court, which has no means of acting, except where there is property.(n) There seems to be no case in which the court, where it has taken away from the father the care and custody of the children, has called in aid of their own means the property of the father.(o) The court has authority to control the legal rights of the father, if the welfare of the infant renders its interference necessary. If a father is abroad, or purposes to send his children out of the jurisdiction; if their continuauce under his care and custody is likely to prevent them from being brought up in a manner suited to their expectations in life; if he is addicted to habitual drunkenness and blasphemy; if their moral or religious principles are likely to be injured by living with him or under his superintendence; in such circumstances the court has never hesitated to exercise its jurisdiction. The jurisdiction exercised by the lord chancellor upon an habeas corpus is the same as if it were before a common law judge.(p)

Sort of Cases in which Jurisdiction has been exercised.]-The jurisdiction has been exercised only in cases marked by the broadest features of immorality and irreligion. It has been applied first in the case of a father outlawed in a foreign country, bankrupt in fortune and vicious in character; secondly, where the father was in Newgate, for breach of the peace against his own wife; thirdly, in the case where the father was an habitual drunkard and blasphemer; fourthly, where the father was an avowed atheist, having published a book

(h) Courtois v. Vincent, Jac. R. 268, note. (i) See Harg. Co. Litt. 128, note; 2 Fonb. Eq. 226. 232; 3 Bla. Com. 426, 427; 2 Russ. 29.

(k) Staundf. de Prer. Reg. 33; 2 Inst. 14; 4 Rep. 126; Bac. Abr. Idiots and Lunatics (C); Dyer, 25; 1 Bla. Com. 303; 1 Bligh's N. S. 348; 2 Russ. 20.

(1) 2 Bligh's N. S. 130, 131. See Quart.

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denying a God, and denying the institution of marriage, and acting up to his principles by deserting his wife and living in adultery; fifthly, in the case of a father, ruined by a most incredible prodigality, bound hand and foot in an adulterous connexion with the wife of another, and perversely inculcating immoral lessons on his children. *The court of chancery will interfere to control the [ *686 ] parent's authority, on the ground of his being an outlaw residing abroad in embarrassed circumstances, and the child having an estate in remainder, and also a present maintenance.

In Cruise v. Hunter, (q) the petition stated the entangled state of the father's property, that he was an outlaw and resided abroad, and that his son, an infant, was entitled in remainder to a very considerable estate, as also to a maintenance by the will of his grandfather, and prayed that the father might be restrained from taking him abroad or improperly interfering with his education, (which was then principally directed by his mother, who lived separate from her husband ;) affidavits were filed on both sides imputing very gross charges to both father and mother. Lord Thurlow, C. threw out that he would not allow the colour of parental authority to work the ruin of his child, and afterwards ordered that his father should be restrained from interfering with the management of the child without the consent of two persons, who were to be allowed by both parties to be proper for the purpose. The order made was, that A. and B., undertaking to take on themselves the care and education of the infant, that the infant be placed under their care, that the father be restrained from removing the said infant from the school and situation in which he then was placed, and from carrying him abroad out of the jurisdiction of the court, and from using and employing any means for that purpose.

The court of chancery removed a child from the father, who was in Newgate for cruelty to his wife, with no other settled abode, and the relative swore that he was unfit to have the management of his children.(r) So also on the ground of the father being an avowed atheist and immoral man living in adultery. Thus a petition was presented in the name of the infant plaintiffs, stating the marriage of their father and mother in the year 1811, and that they were the only issue of it; that about three years ago the father deserted his wife, and had since unlawfully cohabited with another woman; that thereupon the mother returned to the house of her father with the eldest [ *687 ] of the *infants, and the other was soon afterwards born; that they had since that time been maintained by their mother and her father, and that their mother had lately died. It was then stated that the father avowed himself an atheist, and that since his marriage he had written and published a work in which he blasphemously denied the truth of the Christian revelation, and denied the existence of a God as creator of the universe; and that since the death of his wife he had demanded that the children should be delivered up to him, and that he intended, if he could, to get possession of their persons, and educate them as he thought proper. Their maternal grandfather had lately transferred 2000l. 4 per cents. in the names of trustees, upon trust for them on their attaining twenty one, or marrying with his

(g) Br. C. C. 500, note by Belt.

(r) Ex parte Warner, 4 Br. C. C. 101

consent, and in the meantime to apply the dividends for their maintenance and education. Lord Eldon said, "This is a case in which, as the matter appears to me, the father's principles cannot be misunderstood, in which his conduct, which I cannot but consider as highly immoral, has been established in proof, and established as the effect of those principles; conduct nevertheless which he represents to himself and others, not as conduct to be considered as immoral, but to be recommended and observed in practice, and as worthy of approbation.

"I consider this therefore as a case in which the father has demonstrated that he must and does deem it to be matter of duty, which his principles impose upon him to recommend to those, whose opinions and habits he may take upon himself to form, that conduct in some of the most important relations of life as moral and virtuous, which the law calls upon me to consider as immoral and vicious; conduct which the law animadverts upon as inconsistent with the duties of persons in such relations of life, and which it considers as injuriously affecting both the interests of such persons and those of the community."

His lordship made an order to restrain the father and his agents from taking possession of the persons of the infants, or intermeddling with them till further order; and it was referred to the master to inquire what would be a proper plan for the maintenance and education of the infants, and also to inquire with whom and [ *688 ] under whose care the infants should remain during their

minority, or until further order.(s)

The court has also appointed a guardian of infants on the ground of the cruelty and ill-treatment of their father,(t) and on the ground that the father had become insolvent.(u) It was held by the court of chancery, and afterwards by the house of lords, to be a fit case for exercising the jurisdiction of appointing a guardian for infants, being wards of the court, to the exclusion of the father, upon evidence that the father was living in a state of adultery, and had encouraged his children in swearing, keeping low company, &c.(x)

Adultery alone, not a Ground for Interference.]—Some conduct on

(8) Shelley v. Westbrooke, Jac. R. 266. 268, fortunes of the infants respectively. And it

note.

(1) Whitfield v. Hales, 12 Ves. 492. (u) Wilcox v. Drake, 2 Dick. 631. (x) Wellesley v. Duke of Beaufort, 2 Russ. 1; Wellesley v. Wellesley, 2 Bligh's N. S. 124; 1 Dow & Clark, 152. In this case it was referred to the master to inquire and report to what person or persons, willing (other than the petitioner, the father,) to undertake the same, the custody of the infants, and the care of their maintenance and education should be committed; and the master was ordered to inquire and state what were the said infants' ages, and the nature and amount of their fortunes; and to state on what evidence or ground he should approve of any person or persons to have the care of the said infants' maintenance and education; with liberty for all proper parties to attend the master thereon; and the master in making such inquiries was to have regard to the

was ordered, that the father and all other persons be restrained from removing or attempting to remove the said infants or any of them from the care and custody of their aunts without the permission of the court and further order. And the master was ordered to state upon what plan the person or persons to whom upon such inquiry as aforesaid he should report that such care and custody as aforesaid should be committed, propose to conduct and carry on the education of the said infants respectively; and what sum and suins of money were proposed to be or could be allowed and applied for their maintenance and education out of their fortunes; and that he report his opinion upon such plan and proposal for maintenance and education; and thereupon such further order shall be made as shall be just. Wellesley v. Duke of Beaufort, 2 Russ. Rep. 43, 44.

the part of the father, with reference to the management and education of the child, must be shown to warrant the interference of a court of equity with his legal right to the custody of the child. The court has nothing to do with the fact of the father's adultery, unless the father brings the child into contact with the woman. All the cases on this subject proceed upon that distinction, where adultery is the ground of a petition for depriving the father of his com[ *689 ] mon law right over the custody of the children.(y) In Ball v. Ball(z) a petition was presented by the mother and her daughter, a child about fourteen years of age, praying that the daughter might be placed under the mother's care, she offering to maintain her at her own expense; or that the mother might be permitted to have access to her daughter at all convenient times. The father was living in habitual adultery with another woman, on account of which the mother had obtained a divorce in the ecclesiastical court. Sir A. Hart, V. C. thought that he had no authority to interfere, for some conduct on the part of the father, with reference to the management and education of the child, must be shown to warrant an interference with his legal right; and in this case there did not appear to be sufficient to deprive the father of his common law right to the care and custody of his child.

Drunkenness.]-The court of chancery will remove a child from the father on the ground of his constant habit of drunkenness and blasphemy, poisoning the mind of the infant. (a) Lord Eldon stated that he had no difficulty in saying, "that if a father be living in a state of habitual drunkenness, incapacitating himself from taking care of his children's education, he is not to be looked upon as a man of such reason and understanding as to enable him to discharge the duty of a parent; and if a case were to occur again, as it had occurred before, the court would take care that the children should not be under the control of a person who so debased himself, and so likely to injure them."(b)

Where Infant Wards will be allowed to be taken Abroad.]-Notwithstanding the acknowledged legal right of a parent to the custody of his children, the court of chancery having the property of infants under its care, will not suffer the father, who is abroad, to interfere with respect to the infants, because it cannot make him responsible for his conduct towards them; and it has always been the principle of the court not to risk the incurring of damage to children which it cannot *repair, but rather to prevent the damage being [ *690 ] done.(c) The father of infant wards has in some cases been restrained by the court from taking them abroad.(d) But on the petition of an infant ward of the court of the age of eighteen years, praying that he might be permitted to go abroad for three weeks in company with a gentleman to visit his father, leave was granted on

(y) See 2 Russ. 30.

(z) 2 Sim. 35; see Greenhill v. Greenhill, 6 Nev. & M. 245; 4 Ad. & El. 624, where another obstacle to the intervention of the court in favour of the children was the want of a fund applicable to their maintenance.

(a) 10 Ves. 61.
(b) 2 Russ. 30.
(c) 2 Russ. 18.

(d) Anon. Jac. 265, note; De Manneville v. De Manneville, 10 Ves. 32; ante 679; Mountstuart v. Mountstuart, 6 Ves. 363.

satisfactory security being given that he would be brought home within that time.(e)

The court will not make an order permitting its infant wards to be removed out of the jurisdiction, with a view to their residing permanently abroad, except in case of imperative necessity; as where it is clearly proved that a constant residence in a warmer climate is absolutely essential to their health. Such an order, if made, ought to comprise a scheme for the education of the infants, as well as a provision for informing the court from time to time of their progress and condition, and an undertaking to bring them within the jurisdiction when required.(f) Where ill health required the removal, the court made an order for the master to approve of a plan for the infant's maintenance and education out of the jurisdiction, but the allowance to be limited to one year.(g) The court allowed an infant, with the view of his being in his native country, near to his father and sisters, to be placed at the University in Dublin, upon security for bringing him within the jurisdiction when required.(h)

The court has authority to order maintenance for infants out of the jurisdiction, if the circumstances of the case require it; and where an infant had been taken by his father, who had absconded to America without having surrendered to a commission of bankruptcy, and the father would not suffer the infant to return to England, the court upon appeal gave liberty to the guardian to apply annually for an allow ance for the infant's maintenance and education in America, on condition of producing certificates showing the proper application of the money.(i)

[ *691 ] *Religious Tenets when a Ground of Interference.]—

The court will not interfere on the ground of religious tenets, except so far as the law of the country looks upon some religious opinions as dangerous to society. (k) Formerly the court would remove children from Roman Catholic guardians or parents,(7) but it is now otherwise. The court refused to take children from the father on the ground of his being a Catholic.(m)

Testamentary Guardians.]-We have already seen that power is given by statute to the father of appointing guardians for his children.(n) The guardians so appointed are subject to the same jurisdiction, both at law and in equity, as is exercised with respect to the father himself.(0)

Where a suit is instituted for the administration of an infant's estate, the court has jurisdiction over the infant, and on the petition of the guardians may order the infant to be delivered by the mother, whose character was objectionable, to the guardians.(p)

Where the father has appointed a guardian of his children, the

(e) Biggs v. Terry, 1 M. & Craig, 675. (f) Campbell v. Mackay, 2 M. & Craig, 31.

(g) Wyndham v. Lord Ennismore, 1 Keen, 467.

(h) Latham v. Hall, 7 Sim. 141. (i) Stephens v. James, 1 M. & Keen, 627. (k) Lyons v. Blenkin, Jac. Rep. 253. 256. (1) 2 Br.C. C. 510; Teynham v. Lennard, 4 Br. P. C. 302, 2d ed.; see 2 Russ. 22; 1

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